Code of Criminal Procedure provides for three kinds of bail. Section 438 provides for Anticipatory Bail, Section 439 provides for Regular bail whereas Section 167(2) provides for default/statutory bail.

Default bail is also known as statutory bail, this is a right to bail that accrues when the police fails to complete investigation within a specified period in respect of a person in judicial custody.

When a person is arrested under any sections of any act, there is an obligation on the arresting authority to complete investigation with a specified time period which is 60 days and 90 days in different situations. This period is mandatory and not obligatory. Therefore, when a persons is arrested and the police is not able to complete investigation within the specified period, it is their default and the arrested person cannot be kept behind bars beyond this period. This entitlement is called default bail.

This is enshrined in Section 167(2) of the Code of Criminal Procedure (CrPC) where it is not possible for the police to complete an investigation in time. This kind of bail is given by the court on an application made before the jurisdictional Magistrate.

Under Section 167(2) of the Code, a Magistrate can order an accused person to be detained in the custody of the police for 15 days. Beyond the police custody period of 15 days, the Magistrate can authorize the detention of the accused person in judicial custody i.e., jail if necessary. However, the accused cannot be detained for more than:

 ninety days, when an authority is investigating an offense punishable with death, life imprisonment or imprisonment for at least ten years; or
 sixty days, when the authority is investigating any other offense.
 In some other special laws like Narcotic Drugs and Psychotropic Substances Act, this period may vary. For eg: In Narcotic Drugs and Psychotropic Substances Act, the period is 180 days.
 At the end of this period, if the investigation is not complete, the court shall release the person “if he is prepared to and does furnish bail”. This is known as default bail.

Principles:

• It is a right, regardless of the nature of the crime.
• The stipulated period within which the charge sheet has to be filed begins from the day the accused is remanded for the first time.
• It includes days undergone in both police and judicial custody, but not days spent in house-arrest.
• A requirement for the grant of statutory bail is that the right should be claimed by the person in custody.
• If the charge sheet is not filed within the stipulated period, but there is no application for bail under Section 167(2), there is no automatic bail.
• Once the accused files an application for bail under Section 167(2), it is considered that he/she has enforced the right to be released on default bail.
• This right only comes into place after the stipulated time limit for investigation has expired.
• If the accused fails to apply for default bail after the investigation time period has expired, and the investigating agency files a charge-sheet or seeks more time before the accused makes such an application for default bail, then the right of default bail is no longer applicable.
• The Magistrate can then grant further time for completion of the investigation.
• However, the accused may still be released on bail under other legal provisions of the Code.

Default Bail as Fundamental Right:

The Supreme Court while hearing an appeal regarding default bail said that default bail under first proviso of Section 167(2) of the Cr.P.C. is a fundamental right and not merely a statutory right as it is, a procedure established by law under Article 21 of the Constitution.

On the expiry of the period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.

When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/court must dispose of it forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the investigating agency. Such prompt action on the part of the Magistrate/court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the investigating agency in completing the investigation within the period stipulated.

The letter of and spirit behind enactment of Section 167 of the Code as it stands thus mandates that the investigation ought to be completed within the period prescribed. Ideally, the investigation, going by the provisions of the Code, ought to be completed within first 24 hours itself. Further in terms of sub-section (1) of Section 167, if “it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57” the concerned officer ought to transmit the entries in the diary relating to the case and at the same time forward the accused to such Magistrate. Thereafter, it is for the Magistrate to consider whether the accused be remanded to custody or not. Sub-Section (2) then prescribes certain limitations on the exercise of the power of the Magistrate and the proviso stipulates that the Magistrate cannot authorize detention of the accused in custody for total period exceeding 90 or 60 days, as the case may be. It is further stipulated that on the expiry of such period of 90 and 60 days, as the case may be, the accused person shall be released on bail, if he is prepared to and does furnish bail.

Section 167 (1) & (2) of the CRPC:

“167 . Procedure when investigation cannot be completed in twenty-four hours. – (1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:” Provided that (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding, -- (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other 9 offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.”

References:-
1.    Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453
2.    Hitendra Vishnu Thakur and Others v. State of Maharashtra and others  (1994) 4 SCC 602
3.    Sanjay Dutt v. State through C.B.I., Bombay (II) 3 (1994) 5 SCC 410
4.    Bipin Shantilal Panchal v. State of Gujarat (1996) 1 SCC 718
5.    State of W.B. v. Dinesh Dalmia (2007) 5 SCC 773
6.    Sanjay Kumar Kedia v. Intelligence Officer, Narcotics Control Bureau and Another (2009) 17 SCC 631
7.    Union of India v. Nirala Yadav (2014) 9 SCC 457
8.    Ranbeer Shokeen v. State (NCT of Delhi) (2018) 4 SCC 405
9.    Rakesh Kumar Paul v. State of Assam (2017) 15 SCC 67

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